O-246-C
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CITY OF CLERMONT
.
CODE ORDINANCES
No. 246-C
AN ORDINANCE UNDER THE CODE OF ORDINANCES OF THE CITY OF
CLERMONT, LAKE COUNTY, FLORIDA, AMENDING ORDINANCE 195, AS
AMENDED AND INCORPORATED IN CHAPTER 16, ARTICLE I OF THE CODE
OF ORDINANCES OF THE CITY OF CLERMONT, PROVIDING FOR CERTAIN
CHANGES IN THE PENSION PLAN FOR ALL CITY EMPLOYEES, PROVIDING
FOR THE ESTABLISHMENT OF ARTICLE IV, RETIREMENT PLAN AND TRUST
FOR THE GENERAL EMPLOYEES OF THE CITY OF CLERMONT, FLORIDA,
PROVIDING FOR SEVERABILITY, PROVIDING FOR AN EFFECTIVE DATE, AND
PROVIDING FOR PUBLICATION.
THE CITY COUNCIL OF THE CITY OF CLERMONT HEREBY ORDAINS THAT:
Chapter 16, Article I, Pensions and Retirement is hereby amended
as follows:
SECTION 1.
Section 16-1. Definitions.
Subsection (ss) shall be added as follows: "QVEC" shall mean Quali-
fied Voluntary Employee Contributions as defined in Section 219 of
the Internal Revenue Code."
Subsection (sss) shall be added as follows: "QVEC Account" shall mean
the individual participants account".
Subsection (w) is amended by adding the following thereto: "Where
a bank has not been apointed as Trustee, Trustee shall mean that
entity comprised of one or more individuals who from time to time
are appointed by the City Council to serve in a designated capacity
with respect to this Plan and Trust, or are otherwise delegated
responsibility as Trustee by the City Council".
Section 16-1-1 Gender shall be added as follows:
"Wherever pronouns are used in this Article I, masculine shall include
the feminine and the neuter, the feminine shall include the masculine
and the neuter, the neuter shall include the masculine and feminine,
and ~he singular shall include the plural unless the context shall
indicate otherwise".
Section 16-3. Membership and service.
Subsection (a) shall be changed to read as follows: "Original Members."
All employees who were employed by the City on September 30, 1985, and
who elected to remain as members of the plan, shall participate in the
plan as of the effective date (November 1, 1960). T~o offective date
of this plan for Volunteer Firemen shall be October 1, 1979".
Subsection (b) shall be changed to read as follows: "New General
employees shall be required to participate in the General Employees
Plan as established in Article IV as of October 1, 1985, the effective
date of this amendment. Other new full-time permanent employees and
Volunteer Firemen will become eligible to participate in the prior
plan (Article I, Clermont Pension Plan) on the first day of the month
following or coinciding with the date of their employment.
Section 16-4. Contributions and funding.
Subsection (d) shall be amended by adding the following sentence
thereto: "Any QVEC Contributions must be transferred to the Trustee
within thirty (30) days after the date of receipt of such contribu-
tions by the City".
Subsection (e) shall be amended by adding the following sentence
thereto: "Investments shall be subject to Article IV, Section 16-61(c).
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CITY OF CLERMONT
.
CODE ORDINANCES
No. 246-C
Page -2-
Section 16-5. Retirement and retirement benefits.
Subsection (b) shall be amended by changing the following words,
in the second paragraph thereof: "...one and one-tenth per cent
(1.1%) of the first five hundered and fifty dollars ($550.00) of
average monthly earnings, plus two per cent (2~) of average monthly
earnings in excess of five hundred and fifty dollars ($550.00)..."
to read as follows: "two per cent (2%) of average monthly
earnings..."
Subsection (f) shall be deleted and replaced by the following:
"A death benefit is established in accordance with Article IV.,
Section 16-60(a)(3) of this ordinance.
Subsection (h) shall be amended by adding the following paragraph
thereto: "Except as otherwise provided herein, the normal form
of benefit distribution under this plan shall be a "joint and
last survivor annuity" for participants who are married at the
time of retirement or, if earlier, married during the one year
period prior to termination of employment. The normal form of
benefit for a participant who is not married at the time of
retirement or, if earlier, the one year period prior to termi-
nation of employment, shall be an annuity whose payments cease
on the death of the participant".
Subsection (h) shall be further amended by deleting "Option 3"
and replacing same with the following: "Option 3. Other. In
lieu of the other optional forms enumerated in this section,
benefits may be paid in any form approved by the Trustee, other
than "Lump Sum", so long as actuarial equivalence with the bene-
fits otherwise payable is maintained. Notwithstanding the pre-
vious sentence or this option, the Council may elect to pay lump
sum distribution in accordance with Article I, Section 16-7 (r)."
Subsection (0) shall be added as follows:
ment benefit is established in accordance
16-60(a)(2) of this ordinance.
"A Disability Retire-
with Article IV, Section
Section 16-7. Administration of the plan.
Subsection (r) shall be deleted and replaced by the following:
"Small annuities, lump sum payments. If the commuted or present
value of a retirement annuity, other than accumulated Qualified
Voluntary Employee contributions, is less than $3,500 (three
thousand five hundred dollars), the Council may elect to pay the
commuted or present value in one lump sum, without the participant's
consent. No distribution may be made under the preceding sentence
after the annuity starting date unless the participant and the
participant's spouse consent in writing to such distribution."
Section 16-10. Amendment.
This section shall be amended by adding the following sentence:
"Amendments or termination of this plan shall be in accordance
with Article IV, Section 16-62 of this ordinance.
Section 16-11. Qualified Voluntary Employee Contributions shall be
added as follows:
"QVEC's are authorized and shall be in accordance with Article IV,
Section 16-58 of this ordinance".
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CITY OF CLERMONT
.
CODE ORDINANCES
No. 246-C
, Page -3-
Section 2.
Article IV, Separate Retirement Plan and Trust for General Employees
is hereby established as follows:
"A General Employee Pension Plan, as separate from Article I, Clermont
Pension Plan, incorporated as Chapter 16 of the City of Clermont Code
of Ordinances is hereby established and a plan document which is Article
IV, Retirement Plan and Trust for General Employees of the City of
Clermont, Florida, is attached to this Ordinance and is on file in the
City Clerk's office.
Section 3.
All ordinances or parts of this ordinance in conflict herewith are here-
by repealed. Should any section or part of this section be declared
invalid by any court of competent jurisdiction, such ajudicatons shall
not apply or affect any other provision of this ordinance, except to the
extent that the entire section or part of the section may be inseparable
in meaning and effect from the section to which such holding shall apply.
Section 4.
This ordinance shall be published as provided by law
law and shall take effect upon adoption.
First Reading this 9-ۮ day of ~/,
þ((L . /"
Second Reading this ~~ day of L
and it shall become
, 1986.
, 1986.
PASSED AND ORDAINED BY
COUNTY, FLORIDA, THIS
THE CIT); COUNCIL OF J~!-TY
:lJ. /?UL DAY OF /Ú.,:,c,
OF CLERMONT, LAKE
, 1986.
CITY OF CLERMONT
ø4-/?¿
Robert A. Pool, Mayor
Attest:
~/ E /&/ÿ(
~p~. Van Zile¡'ctty Clerk
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CLERMONT CODE
CHAPTER 16
ARTICLE IV
(
RETIREMENT PLAN AND TRUST
FOR THE
GENERAL EMPLOYEES
OF THE
...
CITY OF CLERMONT, FLORIDA
Effective October 1, 1985
I
Section Paragraph
16-54 Definitions
(a)
(b)
16-55
16-56
16-57
16-58
16-59
Coverage and
(a)
(b)
(c)
(d)
(e)
(f)
(g)
Contributions
(a)
(b)
(c)
(d)
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INDEX
RETIREMENT PLAN AND TRUST
FOR THE GENERAL EMPLOYEES OF
THE CITY OF CLERMONT, FLORIDA
Topic
Definitions
Gender
Eligibility
Qualification as a participant
Reparticipation
Leave of Absence
Military Leave of Absence
Continuation of Employment
Recognition as Participant
participant Agrees to Plan
Contribution Formula
Payment of Contributions
Annual Additions
Exclusive Benefit of Participants
Allocation of City Contribution TO
Pension Accounts
(a) During the Year of Termination of
Employment
(b) Accounting for Annual Allocations
Qualified
(a)
(b)
(c)
(d)
Voluntary Employee Contributions
QVEC'S Authorized
participant Election & withdrawal
Remittance of participant's
QVEC by the City
Trustee Administration and Invest-
ment of QVEC'S
Accounting for Participants' Interests in
Pension Accounts
(a) Valuation Date of Pension Accts.
(b) Reductions
(c) Forfeitures
(d) Valuation and Allocation
(e) Segregated Accounts for Former
Participants
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Page
10
10
11
12
12
13
13
14
14
15
16
17
17
18
18
22
22
25
25
26
26
27
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16-6Ø
16-61
16-62
16-63
Benefits
(a)
(b)
(c)
(d)
Rights and
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
Amendment and
(a)
(b)
(c)
(d)
Miscellaneous
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(1)
(m)
(n)
(0)
(p)
(q)
(r)
i
.
From Pension Accounts
Full Distribution of Benefits
Other Termination of Employment
Maximum Time Benefits Must Commence
Termination of participation
28
31
34
34
Duties of the Trustee
Acceptance of Trust
Assets Held as Single Fund
Investments
Records and Reports
Compensation and Expenses
Communication in writing
Fiduciary Responsibility
Removal and Resignation of
Agents and Employees
Trustee
35
35
35
38
38
39
39
39
4Ø
Termination
Right to Amend or Terminate
Assumption by Successor
Permanent Discontinuance of
Contributions
Distribution of Funds in
Event of Plan Termination
41
42
42
43
Nonrestriction of the City's
Employment and Business Policies 45
Interest in Fund not Subject to
Creditor's Claims 45
Predecessor Employer 45
Intention to Continue plan 46
Continuation of Plan by Successor
Employer 46
Controlled or Affiliated Service Group 47
Rights Against City 47
Minors and Incompetents 47
Applicable Law 48
Mistake of Fact 48
Restrictions on Return of Contributions 48
Claims 49
Transfer of Interest 5Ø
Agent for Service of Process 51
Alternate Payees 51
Limitations on Benefits of Certain
Employees
Interest on Late Benefit Payments 54
Protection Against Fraud and Deceit 54
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RETIREMENT PLAN AND TRUST
FOR THE GENERAL EMPLOYEES OF
THE CITY OF CLERMONT, FLORIDA
THIS AGREEEMENT is effective as of October 1, 1985, by and
between the City of Clermont, Florida, a municipality incorporated
under the laws of the State of Florida, hereinafter called the
"City", and the Board of Trustees ("Trustee") as duly appointed by
the City Council of the City of Clermont, Florida, hereinafter called
the "Council".
WHEREAS, Article VIII, section 2(b) of the Florida
Constitution and Florida Statute 166.Ø21 provide, in part, that
municipalities shall have all powers necessary to conduct municipal
government and to take all action related thereto unless expressly
prohibited by law; and
WHEREAS, Chapter 112 (Part VII), Florida Statutes
establishes standards to be followed by municipalities in the
operation of retirement plans for their employees; and
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WHEREAS, on , 198__ the City enacted Ordinance
No. which authorized the establishment the Retirement Plan and
Trust for the General Employees of the City of Clermont, effective
October 1, 1985; and
WHEREAS, this plan is intended to comply with provisions of
Chapter 112 (Part IV) , Florida Statutes, and to qualify under Section
401 (a) of the Internal Revenue Code of 1954, as amended.
NOW, THEREFORE, in order to provide the terms of the said
plan and Trust, the parties hereto agree as follows:
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SECTION 16-54
DEFINITIONS
(a) Statement of Definitions.
,(1) "Act" shall mean the Employee Retirement Income Security Act
of 1974, as it may have been or hereafter may be amended.
,(2) "Annuity" shall mean annual payments for life to be paid in
equal monthly installments on the last day of the month in
which the same accrue.
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Such payments shall be made on a
calendar month basis and the payment for any month may be
prorated if appropriate.
'(3) "Anniversary date" shall mean September 30 of each year.
'(4) "Beneficiary" shall mean the person or persons (natural or
artificial) entitled to receive any amount under this Plan
in the event of the death of a Participant.
,(5) "Benefits" shall mean any payment to a Participant or his
Beneficiary under this Plan.
,(6) "Board of Trustees", or "Trustee" shall mean that entity
comprised of those individuals who from time to time are
appointed by the City Council to serve in a designated
capacity with respect to this Plan and Trust, or are
otherwise delegated responsibility as Trustee by the Board
of Trustees.
'(7) "Break-in-Service" shall mean a 12-month period, measured
over the plan Year, during which an Employee has not
completed more than S0Ø Hours of Service.
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'(8)
, (9)
, (1Ø)
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A Break-in-Service shall not occur in the plan year in which
the Employee becomes a Participant, is deceased, retires,
becomes Totally and Permanently Disabled, is on an
"authorized leave of absen~e", or is on a "maternity or
paternity leave of absence" as defined in section
16-54 (a) (16) :
"City" shall mean the City of Clermont, Florida.
"Code" shall mean the Internal Revenue Code of 1954, as
\
amended.
"Contribution" shall mean the City's annual contribution to
the Plan as provided in section 16-56 (a) .
The City shall at least quarterly transfer to the Trustee
all funds received and funds appropriated by the Council as
Contributions to the Plan.
"Covered Compensation", or "Compensation" shall mean the
annual compensation of a participant during a plan Year,
including overtime pay, but excluding bonuses or payments
made to or for such participant for travel and per diem
expenses, health, hospitalization, sick leave or retirement
benefits.
'(12) "Council" shall mean the city Council of the City of
Clermont, Florida.
. (11)
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'(13) "Effective Date" shall mean October 1, 1985.
, (14) "Employee" shall mean any person in the full-time, permanent
employ of the City as,a general government employee and not
as a Police Officer or Firefighter, except where such Police
Officer or Firefighter is classified as a general employee
for purposes of the Plan. A permanent employee is an
employee who has completed his probationary period, been
approved for permanent status by the department head under
whom he is employed, or the Council, if approved by it, and
,
"
has been certified by the City Clerk as a permanent employee
or is otherwise indicated to be a permanent employee on the
personnel records of the City. An Employee is not any
person who is a "contractor".
'(15) "Fiscal year" shall mean the fiscal year of the City.
,(16) "Hour of Service" shall mean each hour for which an Employee
is paid or entitled to payment for the performance of duties
for the City during the applicable computation period. An
Hour of Service shall also mean each hour for which the
Employee is paid or entitled to payment by the City on
account of a period of time during which no duties are
performed (irrespective of whether the employment
relationship has terminated) due to vacation, holiday,
illness, incapacity (including disability), layoff, jury
duty, military duty or leave of absence. For the purpose of
this last sentence, a payment shall be deemed to have been
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made by or due from the City regardless of whether such
payment is made by or, due from the City directly, or
indirectly through, among others, a trust fund, insurer, or
other entity, or wherein such payments are for the benefit
of the particular Employee or are on behalf of a group of
Employees in the aggregate. An Hour of Service shall also
mean each hour for which backpay, irrespective of mitigation
of damages, is either awarded or agreed to by the City.
Notwithstanding the previous, no more than five hundred 'one
(5Øl) Hours of Service shall be credited for payments of
backpay to the extent that such backpay is agreed to or
awarded for a single continuous period of time during which
an Employee did not or would not have performed duties.
Paragraphs (b) and (c) of Department of Labor Regulations
Section 253Ø.2ØØb-2 are hereby incorporated by reference and
made a part hereof.
For Plan years beginning on and after October 1, 1985, Hours
of Service shall be counted for a "maternity or paternity
leave of absence", where such term shall mean an absence
from work for any period by reason of the Employee's
pregnancy, birth of the Employee's child, placement of a
child with the Employee in connection with the adoption of
such child, or any absence for the purposes of caring for
such child for a period immediately following such birth or
placement. Hours of Service credited under this provision
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shall be credited only for the computation period in which
the absence from work begins, and shall be credited only if
such credit is necessary to prevent the Employee from
incurring a Break-in-Service during that computation
period. If such leave of absence continues into the
following computation period, and credit for Hours was not
necessary in the period of commencement of the maternity or
paternity of absence, then Hours will be credited during the
next computation period if necessary to prevent the Employee
I
from incurring a Break-in-Service in that next computation
period. In crediting Hours of Service under this provision,
the Hours which will be credited are those which would
normally have been credited if the Employee had not been
absent from work. If the Trustee is unable to determine the
hourly methodology as would have been normally credited, the
method will be to credit eight (8) hours of service per
day. No more than five hundred and one (501) Hours of
Service will be credited under this "maternity or paternity
leave of absence" provision during any computation period,
and such credited Hours of Service will not be counted
except for the purpose of determining a Break-in-Service.
(17) "Limitation year" shall mean the plan year.
(18) "participant" shall mean any active, retired, or terminated
Employee who has rights to benefits under the provisions of
this Plan.
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. (19) "Pension Account" shall mean a participant's individual
account containing and resulting from the City's
contributions on and after the Effective Date of this Plan,
along with the investment earnings from such continuing
deposits.
'(2Ø) "Pla.n" shall mean the Retirement Plan for the General
Employees of the City of Clermont, Florida.
, (21) "plan Year" shall mean the twelve (12) month peri od
beginning on October 1 and ending September 3Ø.
'(22) "QVEC" shall mean a Qualified Voluntary Employee
Contribution as defined in Code Section 219.
. (23) "QVEC Account" shall mean the individual participant's
account created under Section 16-58 of this Plan.
'(24) "Trust" shall mean the Retirement Trust established by this
indenture for the General Employees of the City of Clermont,
Florida, together with such amendments hereto as may
hereafter be legally made.
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'(25) "Vesting" or "Vested" shall be as defined and determined in
Section 16-6Ø (b) (1)'.
. (26) "Year of Service" shall mean a twelve (12) month period
during which an Employee has not less than 1,ØØØ Hours of
Service. with respect to a Year of Credited Service and a
Year of Vesting Service, the 12-month period shall be the
Plan year. In the case of an Employee whose employment is
terminated and is thereafter reemployed, Years of Vesting
Service shall be determined in accordance with the
provisions of Section 16-6Ø (b) (2)'.
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,(b) Gender.
The masculine shall include the feminine and the neuter, the feminine
shall include the masculine and the neuter, the neuter shall include
the masculine and feminine, and the singular shall include the plural
unless the context shall indicate otherwise.
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SECTION 16-55
COVERAGE AND ELIGIBILTIY
(a) Qualification as a Participant.
(1) Except as provided in subparagraph (2) below, all active
Employees who on September 30, 1985 were participants of
another retirement plan sponsored by the City shall be
eligible to participate in the Plan as of the Effective
Date. Each Employee employed after the Effective Date shall
become a Participant as of the first day of the month ~
following or coinciding with the date as of which he has
completed one Year of Service with the City.
(2) All employees covered by a collective bargaining agreement
between employee representatives and the City, to which
retirement benefits have been the subject of good faith
bargaining, shall be excluded from coverage under this plan
unless included by the City in the definition of Employee.
(3) The term "participant" shall also include the teim"Transfer
participant", which means a participant of another
retirement plan sponsored by the City who has elected to
transfer his participation to this Plan.
(b) Re-participation.
A former Plan Participant shall commence participation in this Plan
immediately upon his return to the City's employ if such former Plan
participant had a nonforfeitable right to all or a portion of his
Pension Account balance at the time of his previous termination of
employment.
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A re-employed former plan participant who did not have a
nonforfeitable right to any portion of his Pension Account balance
at the time of his previous termination shall be considered a new
Employee for eligibility purposes, if the number of his consecutive
one year Breaks-in-Service equals or exceeds the greater of (i) five
years, or (ii) the aggregate number of Years of Service before such
break. If the former Participant's Years of Service before his
termination exceed the number of consecutive one-year
Breaks-in-Service after such termination, or if such former
,
,
Participant's consecutive one-year Breaks-in-Service are less than
five, he shall commmence participation in this Plan immediately upon
his return to the City's employ.
If, after the Effective Date, a former Employee is reemployed
after five (5) consecutive Breaks-in-Service, separate Pension
Accounts for such former participant shall be maintained such that
one Account maintains nonforfeitable benefits attributable to
pre-break service and another Account maintains his status in the
plan attributable to post-break service.
, (c) Leave of Absence.
A leav~ of absence for a period of not greater than two (2) years,
authorized by the City for personal hardship or other unusual
circumstance, shall not be considered a Break-in-Service, provided
the Employee returns to active employment with the City within ten
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(10) days of the expiration of such leave of absence. Leaves of
absence hereunder shall be granted in a nondiscriminatory manner
applied to all Employees in similar circumstances. Such leave of
absence shall not count toward Years of vesting Service or
continuation by the City.
(d) , Military Or Related Leave of Absence.
When any Participant is inducted or enlists into (i) any of the armed
,
forces of the united States, or in any reserve component thereofi
(ii) the United States Coast Guard, or in its reserve component,
(iii) active duty in the armed forces of the united States, the
United States Coast Guard, or the United States public Health Service
in response to an order or call to active duty (hereafter referred to
as "military or related service") and is subsequently re-employed by
the City within ninety (90) days after release from any such service,
such Participant shall again become a participant of the Plan, and
shall be given credit for Years of Service before entering military
or related service, and if approved by the Trustee, for the period of
time spent in the military or related service as well.
(e) Continuation of Employment.
During a period of absence under either paragraph (c)' or (d) above,
the Employee shall retain full eligibility under the Plan; provided,
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however, that if any such Employee does not return to the City's
employ within the required time after the expiration of the period of
absence, said Employee shall be considered as having commenced a
Break-in-Service, as defined in Section 16-54 (a) (7), at the beginning
of his period of absence.
. (f) Recognition as Participant.
Every Employee entitled to participate in this plan shall be known as
a "Participant", and within ninety (90) days after the date an
I·
Employee first becomes a Participant the Trustee shall provide him a
Summary plan Description of the plan as then in force.
. (9) participant Agrees to plan.
Each Participant and Beneficiary shall be conclusively deemed for all
purposes to have assented to this Plan and Trust Agreement and to all
the terms and provisions hereof and shall be bound thereby with the
same force and effect as though a party hereto. If requested to do
so, an eligible Employee shall execute such participation or other
forms as may be required by the Trustee.
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SECTION 16-56
CONTRIBUTIONS
, (a) Contribution Formula.
Except as provided in Section 16-58', an Employee is neither permitted
nor required to contribute to the Plan. For the plan Year ending
September 3Ø, 1986, and for each plan Year thereafter, the City shall
contribute to the Pension Account of each active participant who was
'.
employed on the Anniversary Date an amount equal to the lesser of (i)
seven percent (7%) of his annual Compensation, or (ii) the maximum
Annual Addition permitted under paragraph (c), hereof.
. (b) Payment of Contributions.
The Contributions of the City for each Plan Year shall be made in
quarterly installments; however, the City may, in its discretion,
make its Fourth Quarter Contribution to the Trustee within sixty (6Ø)
days after the end of the Plan Year. Any QVEC contributions must be
deposited in the Trust within thirty (3Ø) days after the date of
receipt of such contributions by the City.
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(c)' Annual Additions.
Notwithstanding anything to the contrary contained in Paragraph (a)~
hereof, the "Annual Addition" amount added annually to the Pension
Account of a Participant shall not exceed the lesser of twenty five
.--------- "-_.
percent (25%) of Compensation or $3Ø,ØØØ.øø (increased by permitted
------
cost of living adjustments as set forth in regulations issued by the
Secretary of the Treasury or his designate pursuant to Code Section
415(d), as amended). The "Annual Addition" referred to herein shall
include: (i) the Participant's share of the City's Contribution, and
, , \
(ii) th9 lE''Õ'Õe.L~Qe.:-J1Blf_.Df,~l-l-t-he-Employee''s contnbutlons, '-or
the Employee's contributions i.n C)(CCS£ of six pcrccf!.t.n~.£i%)of his
Cowpe¡,s-a-ti-on. An Employee's QVEC contributions shall not be
considered as Employee contributions for the purpose of the previous
sentence.
If the amount to be added to a Participant's Pension Account
during a plan Year would exceed the above limitation on "Annual
Additions", the excess amount shall be held unallocated in a suspense
amount and then reallocated in the next plan Year to such
Participant's Pension Account if such reallocation does not cause the
maximum "Annual Addition" to be exceeded. No excess amounts shall be
distributed to Participants or former Participants.
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(d) Exclusive Benefit of participants.
Except under the circumstances set forth in Sections 16-63(jj and
16-59(c), at no time shall any,part of the funds hereunder revert to
the City or be used or diverted to any purpose other than for the
exclusive benefit of the participants or their Beneficiaries or
estates.
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SECTION 16-57
ALLOCATION OF CITY CONTRIBUTIONS TO PENSION ACCOUNTS
(a) During the Year of Termination of Employment.
If a Participant's employment terminates for reasons other than
death, disability, or retirement, his Pension Account shall rece ve
an allocation of Contribution only if he is employed by the City on
the last day of the Plan Year.
(b) Accounting for Annual Allocations.
The amount allocated to each Participant's Pension Account shall be
credited in the name of such Participant on the books of the
Trustee. Such allocation and credit shall not pass any right, title
or interest in the Trust to the Participant except at the time or
times and upon the terms and conditions hereinafter provided in
Section 16-6Ø:
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/47.
SECTION 16-58
C)/ I"-
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A~ltl:l
CONTRIBUTIO~
QUALIFIED VOLUNTARY EMPLOYEE
(a) QVEC'S Authorized.
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Employee
Each participant may elect to make Qualified Voluntary
Contributions in accordance with the terms and procedures provided in
Paragraphs (b), (c) and (d'> of this Section 16-58.
(b) Participant Election and withdrawal
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(1) A participant may elect to make Qualified Voluntary Employee
contributions on a monthly or other basis corresponding to the
City's pay periods. Such contributions shall be treated as
"Deductible Employee Contributions" in accordance with rules
governing such contributions under Code section 219. ~~ounts
transferred to this plan under either the transfer or rollover
provisions of this Plan shall not be treated as Deductible
Employee Contributions. A Participant who does not elect to make
Qualified Voluntary Employee Contributions, when first eligible,
may later elect to commence the deduction of a QVEC. Such
election shall be made by authorizing the City, in writing, on a
form provided for such purpose, to deduct a designated sum. The
sum designated for deduction as a QVEC shall be a maximum of the
lesser of:
(i) one hundred percent (100%) of the Participant's
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compensation from the City includable in the Participant's gross
income. for the calendar year, or (ii) two thousand dollars
($2,000.00) for a calendar year, where such dollar amount shall
be inclusive of any Individual Retirement Account which the
Participant has also established for the limitation period.
(2) The effective date òf the election to make a QVEC shall be
not more than thirty (30) days after the date the written request
is made to the City on the appropriate form. The first payroll
deduction of a QVEC shall occur on the first payday of the mbnth
coinciding with or subsequent to the effective date of the
election.
(3) The Participant shall be permitted to make a QVEC for the
calendar year preceding his election if the QVEC is received by
the earlier of April 15 of the calendar year in which the
election is made or the date of filing of the Participant's
individual tax return.
(4) A participant may change the amount of a QVEC contribution
with respect to a future calendar month or pay period by
notifying the City, in writing, on a form provided for such
purpose. The change in the QVEC contribution shall become
effective not more than thirty (30) days after the request is
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received by the City. The first deduction of the revised QVEC
shall occur on the first payday of the month coinciding with or
subsequent to the effective date of the election. The amount
deducted by the Participant must remain within the maximum limits
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specified in Paragraph (b) (1) above.
(5) A participant who is still employed may voluntarily withdraw
all or part of his QVEC account by making a written request on a
form provided for that purpose and forwarding the same to the
Trustee. The withdrawal shall be distributed not later than
thirty (30) days after the receipt of the participant's requèst.
The exercise of this right of withdrawal shall in no way affect a
participant's participation in the Plan, past or future
Contributions made on his behalf or the basic retirement benefits
provided by the Plan. The Trustee will, by written or oral
disclosure, insure that the participant understands that a ten
percent (10%) penalty is assessed on voluntary QVEC withdrawals
because of Internal Revenue Service regulations, (unless the
withdrawal is rolled-over to an Individual Retirement Account) .
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(6) Except for a withdrawal pursuant to subparagraph (5) above,
distributions of a participant's QVEC Account shall be made in
the manner set forth below:
(i) Normal or Delayed Retirement. At the time that benefit
distribution commences under the Plan for a Participant aged
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59-1/2 or greater, the participant's QVEC Account shall be
distributed to him in a lump-sum. If distributions under
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Section 16-60 commence before the Participant's attainment
of age fifty-nine and one-half (59-1/2), the Trustee shall
hold such QVEC Account until the Participant reaches age
fifty-nine and one-half (59-1/2), dies, or becomes disabled.
(ii) Upon termination of employment, Disability Retirement
under the Plan, or upon termination of the plan, the
Participant's QVEC Account shall be distributed to him in a
lump-sum. In the case of distributions due to termination
of employment or termination of the Plan to distributees who
are less than age 59-1/2, the Trustee will disclose the 10%
penalty to the distributee, (unless the distribution is
rolled-over into an Individual Retirement Account) .
(iii)In the event of the participant's death while any
balance remains in his QVEC Account, such balance will be
paid in a lump-sum to the Beneficiary then designated by the
Participant, in writing on a form provided for such purpose,
to receive such balance. If the Participant makes no such
designation or if no designated Beneficiary survives the
Participant, the distribution shall be to the person or
persons entitled to receive other death benefits under the
Plan.
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(7) A Participant's QVEC Account shall be fully vested and
non-forfeitable at all times.
(8) A participant's election or failure to elect to participate
in a QVEC shall in no way affect a participant's participation in
the plan, past or future Contributions made on his behalf, or the
basic retirement benefits provided under the Plan.
(c) Remittance of Participant's Qualified Voluntary
Employee Contributions by the City.
The City shall deduct designated QVEC's for each Participant from the
compensation due the Participant either monthly or for each pay
period as the City, in it discretion, shall determine. The total sum
of all Participants' QVEC's shall be remitted to the Trustee by the
City as provided in Section 16-56(b)~ hereof. The amount deducted
shall be within the maximum amounts specified in Paragraph (b) (1),
above.
(d) Trustee Administration and Investment of QVEC's.
(1) The Trustee shall establish and maintain a separate QVEC
Account in the name of each participant to which the
Participant's Qualified Voluntary Employee Contributions shall be
credited. The participant's QVEC Account shall be valued on an
annual basis, or otherwise as determined by the Trustee, and such
valuation shall reflect the participant's Account balance as of
the valuation date.
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(2) In the event a Participant elects to voluntarily and
completely withdraw his QVEC Account balance from the Trust Fund,
the Trustee shall make a valuation of the Employee's QVEC Account
as of the effective date of the withdrawal, crediting or debiting
trust earnings since the last valuation date, on the basis of the
estimated Trust investment earning rate. From the effective date
of a complete withdrawal, a participant's QVEC Account shall not
be credited with investment gains nor debited for investment
losses.
(3) The Trustee shall not be responsible for the failure of the
City to perform any of its obligations under this Section 16-58'
including but not limited to the duty to remit Participants'
QVEC's to the Trustee or to provide necessary records concerning
participating Employees or any other procedures required by the
rules and regulations of the Trustee. Any time limits specified
in this Section shall be tolled by the failure of the city to
timely remit to the Trustee any necessary documents or records
relating to a participant's QVEC.
(4) The Trustee shall not be responsible to any participating
Employee for any obligations beyond the extent of the assets on
hand for the participating Employee. NO rights shall accrue as
against the Trustee or the Trust Fund in the event of voluntary
or involuntary termination of the plan by the city, beyond the
assets on hand for the participating Employee.
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(5) The Trustee shall not be responsible to any participant or
Participants for the separate investment of QVECs, and the
Trustee may commingle QVECs with other plan funds for investment
purposes, at the discretion of the Trustee.
(6) The Trustee shall file periodic reports with the Internal
Revenue Service and with the Participant concerning the
Participant's QVEC. Such reports shall be filed at the time and
in the manner in which such reports are required by the Internal
Revenue Service on forms appropriate for such purposes.
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SECTION 16-59
ACCOUNTING FOR PARTICIPANTS' INTERESTS IN PENSION ACCOUNTS
(a) Valuation Date of Pension Accounts.
The annual valuation date of Pension Accounts shall be the last day
of the Plan year, (September 3Ø). As of such valuation date each
year, all participant accounts shall be adjusted by the Trustee on
the basis and in the order hereinafter set forth.
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(b) Reductions.
The Pension Accounts shall be reduced by all amounts which are paid
out or set aside (as provided under Paragraph (e) of this Section
16-59) due to the retirement, death, disability, resignation or other
termination of a Participant since the preceding valuation date. The
Pension Accounts of Employees who have retired, become disabled, or
died since the first day of the Plan year shall share in the
allocation of City's Contributions, and Trust investment earnings, as
provided in the following paragraphs of this Section 16-59. The
Pension Accounts of Employees who have resigned or been discharged
since the first day of the Plan Year but prior to the last day of
such year shall not participate in the allocation of Contributions
for that year; however, such former Employees shall share in the
Trust investment gains and losses for the Plan Year in which their
employment terminates and, if applicable, the plan Year following
which establishes their Break-in-Service. The Pension Accounts of
such former Employees will be valued for distribution purposes as of
the last day of the Plan Year in which a Break-in-Service occurs.
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(c) Forfeitures.
After the reductions provided for in Paragraph (b), above, all
amounts in a former Employee's Pension Account which are not Vested
shall become forfeitures as of the last day of the Plan Year in which
a one-year Break-in-Service is determined. Such forfeitures shall be
used by the City to reduce the City's required Contribution under
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Section 16-56(a) for the current or future Plan year.
(d) Valuation and Allocation.
The Trustee shall maintain a Pension Account for each eligible
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Participant, to which shall be credited the amount of each
Contribution received on behalf of such participant, along with the
pro-rata gains to such Participant's Account from its participation
in any pooled investment, and to which shall be debited any
investment losses, expenses of administration (if not otherwise
reimbursed by the City) and distributions to the Participant. The
allocation of gains and losses shall be based on the balance of each
participant's Pension Account as of the end of the preceding plan
Year in proration to the total balances of all ,Participants' Pension
Accounts as of that same date.
For purposes of the preceeding paragraph, assets shall be valued at
their fair market value at the end of each plan Year (and upon the
segregation of any portion of a pooled investment), and the
appropriate debits and credits to the accounts of each Participant
shall then be made.
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As long as this Trust has any investments in a common trust fund
available only to pension trusts and profit sharing trusts which meet
the requirements of Sections 4Øl(a) and 5Øl(a) of the Internal
Revenue Code of 1954, as amended, such common trust funds shall
constitute an integral part of this plan and Trust.
(e) Segregated Accounts for Former participants.
The amounts to which former Participants are entitled (but which have
not been paid out) may, at the discretion of the Trustee, be severed
from the Trust and set aside, and held and invested by the Trustee in
segregated accounts, in which event a Participant shall no longer
participate in the gains or losses of the Trust nor in the increases
and decreases in the value of the assets thereof, but shall only be
credited or charged with the gains or losses, and with increases and
decreases of that portion of the Trust so set aside in his segregated
account. All segregated accounts shall be actively and prudently
invested, in the same manner as the accounts of current Participants
hereunder, and the Trustee may charge such accounts with a prorated
portion of the fees and expenses incurred in the administration of
the Plan. This provision shall be applied in a nondiscriminatory
manner to all participants similarly situated.
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SECTION 16-6Ø
BENEFITS FROM PENSION ACCOUNTS
(a) Full Distribution of Benefits.
The benefits credited to the Pension Account of each Participant
shall be vested as provided herein and the net value thereof shall be
distributed to the Participant by the Trustee upon the happening of
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any of the events described in subparagraphs (lí through (4), below,
as follows:
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(1) Retirement. If the participant retires on or after
attaining retirement age, as hereinafter defined, the full amount
credited to the Participant's Pension Account as of the
Anniversary Date of the Plan Year of retirement shall be
distributed to him in accordance with Paragraph (c)' of this
Section 16-6Ø~ A participant shall be deemed to have attained
retirement age upon the last day of the month in which he attains
his sixty-fifth (65th) birthday and has been credited 'with at
least ten (1Ø) years of Vesting Service; provided, however, that
if the Participant remains employed by the City after reaching
said retirement age, he shall continue to be a Participant
hereunder until the last day of the Plan Year during which he
actually retires.
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(2) Disability Retirement. If a Participant terminates
employment under a determination of being "permanently and
Totally Disabled", as defined below, distribution shall be made
to him as though he had retired under the provision of Paragraph
(a) (1), above, as if he had attained retirement age on the last
day of the month during which a determination of disability is
issued by the Trustee. A participant shall be considered
Permanently and Totally Disabled on such date as a medical
examiner selected by the Trustee certifies that he is mentally or
physically unable to further perform any service for the Cit~ and
that such disabiiity is likely to be permanent. This provision
shall be applied in a nondiscriminatory manner to all
Participants similarly situated.
Notwithstanding anything to the contrary contained herein, in the
event a Participant becomes permanently and Totally Disabled
after terminating employment with the City and incurring a Break-
in-Service, the payment to be made to such disabled Participant
shall be limited to his QVEC Account and his vested interest in
his Pension Account based on the number of his Vesting Years of
Service prior to the plan Year in which he became disabled and
taking into account his Hours of Service during the plan year in
which disability occurred.
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(3) Death. In the event of the death of a participant (or former
Participant whose Pension Account balance has not been fully
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distributed under Section 16-59(e», the amount credited to his
Pension Account and his QVEC Account shall be paid, as soon as
practicable after the date of death, in the manner set forth in
Paragraph (c) of this Section 16-6Ø and, if applicable, Section
16-58(b), to the Beneficiary or Beneficiaries designated by the
Participant, or if none have been so designated, to his surviving
spouse, or if none, to his then living issue, ~ stirpes, or if
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none, to the personal representative of his estate. The designation
of Beneficiaries shall be made in writing on forms furnished by the
Trustee at the time the Employee becomes eligible to participate in
this Plan. Said designations may be revoked or changed in the same
manner.
Notwithstanding anything to the contrary contained herein, in the
event a Participant dies after terminating employment with the City
and incurring a Break-in-Service, the payment to be made to such
deceased Participant's Beneficiary from his Pension Account shall be
limited to the deceased Participant's vested interest based on the
number of Years of Vesting service prior to the Plan Year in which
death occurred and taking into account his Hours of Service during
the Plan Year in which he died.
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(4) Termination of Plan and Trust. In the event of the
termination or partial termination of this Plan, the City may
elect to continue this Trust in full effect, in which case
benefits shall be paid to Participants in accordance with the
provisions of Section 16-62 (d). Notwithstanding the above, if
the City continues this Trust in effect, a participant may
receive full and immediate distribution of his benefits from the
Plan by filing an irrevocable written election with the Trustee
within one (1) year after the effective date of termination ~f
the plan.
The City may elect instead to terminate the Trust, in which event
the Trustee shall pay over to each participant, within six (6)
months thereafter, the entire balance credited to his Pension
Account and QVEC Account.
The termination or partial termination of the Plan, or the
complete discontinuance of contributions by the City, shall
result in the full vesting of benefits hereunder.
(b) Other Termination of Employment.
If a Participant terminates employment and thereafter incurs a Break-
in-Service for any reason other than as referred to in paragraph (a),
above, (for example, by resignation or discharge by the City), his
benefits under this Plan shall be limited to his QVEC Account and the
vested interest in his Pension Account.
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(1) Vested Interest. A terminated participant's vested interest
in his Pension Account shall be distributed to him pursuant to
Paragraph (c) of this Section 16-6Ø upon his retirement date (as
defined in Paragraph (a), above), unless the Trustee shall, in
its discretion but pursuant to its policy of treating all
Employees similarly situated in an equal manner, consent to
earlier payment. Such vested interest shall be determined in
accordance with the following schedule:
Years of Service
Less than 5 years
5 years
6 years
7 years
8 years
9 years
lØ years or more
Vested Interest
Ø%
5Ø%
6Ø%
7Ø%
8Ø%
9Ø%
lØØ%
(2) Vested Interest Upon Reemployment. A former Participant who
is rehired by the City and who had a nonforfeitable right to all
or any portion of his Pension Account at the time of his
termination shall receive credit for all Years of Service (as
calculated in the preceding paragraph) prior to his
Break-in-Service. A former Participant who did not have a
nonforfeitable right to all or any portion of his Pension Account
at the time of his termination shall receive credit for Years of
Service prior to his Break-in-Service only if the number of
consecutive one-year BreaKs-in-Service is less than the greater
of (i) the aggregate number of his Years of Service before such a
breaK, or (ii) five (5) years.
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The vested interest of a Participant who terminates his
employment and is then re-employed without incurring a
Break-in-Service shall remain unchanged and upon his
re-employment said Participant's vested interest shall be
identical to such interest as it existed on his previous date of
termination, less any distribution of such Vested interest in the
interim time period thereof.
No amendment to the above Vesting schedule shall deprive a
Participant of his nonforfeitable right to benefits accrued prior
to the effective date of the amendment. In addition, if the
Vesting schedule is amended, then each participant with at least
five (5) Years of Service with the City at that time shall have
his nonforfeitable percentage computed under the Vesting schedule
which is more favorable to him.
(3) Unvested Interest Forfeited. The portion of a terminated
Participant's Pension Account which is not Vested shall be
forfeited, as of the end of the plan Year in which his first
Break-in-Service occurs, and shall be applied in accordance with
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Section 16-59(c).
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'(c) Maximum Time At Which Benefits Must Commence
Notwithstanding anything to the contrary contained herein, the
payment of all retirement benefits under this plan must begin within
sixty (60) days after the end of the Plan Year following the later
of:
(a, The participant's attainment of retirement age,
(b) The Participant's termination of employment, or
(c) The Participant's tenth (10th) anniversary of
participation in the Plan.
(d) Termination of participation.
Subject to the re-entry requirements contained in Section 16-55(b)~
the termination of active service as an Employee of the City shall
constitute termination of participation hereunder, except that if the
active service of a Participant is suspended on account of a
permitted leave of absence or absence for military or related
service, as provided under sections 16-55 (c) and (d), his
participation shall not be deemed to have terminated. In the event
of a permitted leave of absence or absence for military or related
service, the Participant shall not share in contributions made by the
City during his absence, but he shall continue to share in Trust
investment gains and losses, on a pro-rata basis, as provided in
Section 16-59 (d) .
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SECTION 16-61
RIGHTS AND DUTIES OF THE TRUSTEE
(a) Acceptance of Trust.
The Trustee hereby accepts the Trust created hereunder and agrees to
perform its duties under this Plan and Trust Agreement.
(b) Assets Held as Single Fund.
The Trustee shall take control of the Trust assets and shall hold,
invest and reinvest them, together with the income thereof, in its
absolute discretion. The Trustee is explictly authorized to utilize
the services of a Master Trust approach if deemed in the best
interest of the Trust and Participants. All Contributions from time
to time paid to the Trustee by or on behalf of the City, and the
income therefrom, may be held and administered by the Trustee as a
single fund, and the Trustee shall not be required to segregate or
invest separately any share of the Trust except as provided by
Section 16-59 (e) .
(c) Investments.
The Trustee shall be solely responsible for establishing the Plan's
funding policy and method and, in amplification of the foregoing, may
invest or cause the investment of the funds hereunder in such bonds,
common or preferred stock, mutual funds or other securities,
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mortgages, real or personal property of every kind and nature, stock
options (including puts and calls), or other such investments or
master trusts, as in its sole discretion it may deem advisable,
subject always to the overriding requirement that no investment shall
be made which is prohibited by the Internal Revenue Code, the
Employee Retirement Income Security Act of 1974, or the Florida
statutes. The Trustee, in its discretion, may negotiate, execute and
deliver an option or agreement for purchase of any securities,
including bonds, preferred and common stocks, mutual funds or any
other property, real or personal. Further, the Trustee may hold such
investments in its own name or in the name of a nominee or nominees
with or without a disclosure of the Trust; it may retain in cash and
keep unproductive of income such portion of the funds as may be
deemed advisable; it may vote upon any stocks, bonds or other
securities of any corporation or other issuer of securities held in
trust, and generally may exercise any of the powers of an owner with
respect to stocks, bonds or other securities or property comprising
the Trust.
Notwithstanding any provisions contained herein, all investments
under this Plan shall be made by the Trustee in a prudent manner, and
in making investments all participants shall be treated equally and
on a nondiscriminatory basis. In addition, the Trustee shall
maintain diversity in selecting such investments unless under the
circumstances it is clearly prudent not to do so.
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The Trustee shall have the power to appoint an "Investment Manager",
as defined below, to manage, (which shall include the power to
acquire and dispose of), all or any part of the Trust. If an
Investment Manager is so appointed, written notice thereof shall be
given to the Council and the City, along with written acknowledgment
of such appointment executed by such Investment Manager, which shall
set forth the Investment Manager's acceptance of his or its status as
a fiduciary of the Plan. The Trustee shall have no fiduciary
liability for the acts or omissions of such Investment Manager or be
under any obligation to invest, otherwise manage or inquire as to the
disposition of that portion of the Trust Fund which is subject to the
control of the Investment Manager.
with respect to the previous paragraph, an "Investment Manager" is
any fiduciary, other than a Trustee of this Plan, who:
(i) has the power to manage, acquire or dispose of any
portion of the Trust Fund;
(ii) is registered as an investment advisor under the
Investment Advisors' Act of 1940; and
(iii) has acknowledged in writing that he or it is a
fiduciary with respect to the Plan.
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(d) Records and Reports.
The Trustee shall keep accurate and detailed records of the
administration of the Plan and Trust, which records shall be open to
inspection at all reasonable times to any person designated in
writing by the City. Within ninety (90) days following the close of
each plan year, the Trustee shall provide the City with a written
statement and report setting forth all investments, receipts and
disbursements and other transactions effected during such year, and
containing an exact description of all securities purchased and sold,
and the cost or net proceeds of sale, and showing the securities and
other Plan assets held at the end of the year, and the cost of each
item. The Trustee shall be solely responsible for maintaining all
records of the plan and Trust and preparing and filing all reports,
tax returns and other materials required by the Department of the
Treasury, the Department of Labor, and the State of Florida, and for
supplying the Participants and Beneficiaries with all information and
forms regarding the operation of this Plan and Trust as may be
required by law.
(e) Compensation and Expenses.
The City shall pay to any Trustee who is not an employee of the City
such reasonable compensation for services rendered as may from time
to time be agreed upon between the City and the Trustee. The City
shall payor reimburse the Trustee for all reasonable èxpenses
incurred in the execution of its duties hereunder, including fees for
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legal, accounting, investment and other professional services. If
permitted by the City in writing, such compensation and expenses may
be charged against and paid out of the Trust.
(f) Communication in writing.
Any determination or action of the City pursuant to the provisions of
this plan and Trust shall be authorized by the City and communicated
in writing to the Trustee.
(g) Fiduciary Responsibility.
The Trustee, as a named fiduciary of this plan and Trust, is charged
with full responsibility for the administration and operation of the
Plan, which shall include compliance with Chapter 112 (Part VII)
Florida Statutes and other applicable Florida law.
The Trustee, has the power to construe all terms, rules, conditions,
and limitations for the Plan, and its construction made in good faith
shall be final and conclusive upon all parties' interests.
(h) Removal and Resignation of Trustee.
The Trustee may be removed and successors may be appointed and later
removed by the City by the delivery to such Trustee of a written
directive by an authorized representative of the City to that
effect. The Trustee may resign by the delivery to the City of a
written resignation. Such removal or resignation shall become
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effective immediate from the date of the delivery of the directive or
resignation, as the case may be, unless a later date is agreed upon
by the City and the Trustee. In the event of such removal or
resignation, the successor Trustee, upon acceptance of the
appointment by an instrument in writing delivered to the City, shall
become vested with all the rights and assume all the duties specified
under this Plan and Trust Agreement. Upon such appointment and
acceptance, the former Trustee shall endorse, transfer and assign to
the successor Trustee all of the funds, securities and other pro~erty
then held by it in the Trust, and shall deliver to the successor
Trustee such records as may be reasonably required for the proper
administration of the Trust hereunder.
(i) Agents and Employees. The Trustee shall have the power to
select, employ and compensate, or cause to compensate from time to
time such consultants, actuaries, accountants, attorneys, investment
counsel, and other agents and employees as it deems necessary and
advisable in the proper and efficient administration of the Plan.
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SECTION 16-62
AMENDMENT AND TERMINATION
(a)
Right to Amend or Terminate.
To the extent consistent with Internal Revenue Code requirements of
qualification, the City reserves the right at any time to terminate
and from time to time amend this Plan and Trust, in whole or in part,
either retroactively or prospectively, by delivering to the Trustee a
written amendment; provided, however, that the City shall have no
power to amend this plan and Trust in such a manner as would cause or
permit any of the Trust to be diverted to purposes other than for the
exclusive benefit of the Participants or their Beneficiaries or
estates, or to take such action as would cause or permit any portion
of the assets of the Trust to revert to or become the property of the
. .
City, except as permitted under Section 16-63(J), and provided
further that no amendment shall cause or permit retroactive
diminution of any rights which the participants have acquired with
respect to Contributions made previous to the date of any such
amendment. Any amendment to this plan and Trust shall be approved
and executed by the City and the Trustee.
An amendment which
affects the rights of any Participants hereunder shall be
communicated to those Participants.
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(b) Assumption by Successor Employer.
In the event of the termination of further Contributions to this
Plan, the City's obligations hereunder may be assumed by any
municipality or other corporation which employs a substantial number
of the participants of the Plan. Such assumption shall be made
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pursuant to Section 16-63(e) hereof, and shall be evidenced by an
agreement between such municipality or other corporation and the
Trustee.
(c) Permanent Discontinuance of Contributions.
Permanent discontinuance on the part of the City of further
Contributions shall constitute termination of this Plan; provided,
however, that the City shall have the option of continuing the
operation of the Trust. Said termination and continuance shall be
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handled in accordance with Sections 16-6Ø(a) (4) and 16-62(d) hereof.
For the purpose of this paragraph, permanent discontinuance will not
be deemed to have occurred merely because of a temporary suspension
of contributions, as long as the City incurs an obligation to make up
missed Contributions, plus accrued interest at the actual rate of
Trust investment gains, (but not losses), during years of suspended
Contributions.
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(d) Distribution of Funds in the Event of plan Termination.
Upon termination of the Plan for any reason, including the permanent
discontinuance of Contributions, the Pension Account of each
Participant, to the extent then funded, shall be non- forfeitable.
If this Plan is discontinued, no further Contributions will be made
by either the Participants or the City and the funds held in Trust
shall be allocated for the retirement income of each Participant,
Beneficiary, Contingent Annuitant, or spouse in the following order
of precedence:
(1) First, to provide for the payment of each participant's QVEC
Account Benefit determined as of the earlier of the date of
termination of the plan or the Participant's date of actual
retirement;
(2) Second, to provide for the payment of (i) the termination
benefit of each Participant, Beneficiary, Contingent Annuitant,
or spouse who was receiving payment of his benefit under the plan
as of the beginning of the three (3) year period ending on the
date of termination of the Plan and (ii) the benefit of each
participant who was eligible to retire on or before the beginning
of the three (3) year period ending on the date of termination of
the Plan but who did not retire, where such benefit is determined
in accordance with the terms of the Plan as in effect during the
five (5) year period ending on the date of termination of the
Plan under which such benefit would be the least, but only
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to the extent such benefit exceeds his benefit determined as of
the earlier of the date of termination of the plan or his date of
actual retirement;
(3) Third, to provide for the payment of the benefit of each
Participant, Beneficiary, Contingent Annuitant, or spouse who is
receiving payment of his benefit (including those Participants
who are eligible for a deferred benefit) as of the date of
termination of the plan to the extent such benefit exceeds the
benefit to which assets have been allocated in accordance with
. '
Subparagraphs (1) and (2) of this paragraph (d); and
(4) Fourth, to provide for the payment of all other benefits
under the Plan.
Such allocation shall be made with respect to each of the foregoing
classes without regard to the order in which the individuals of such
class attained, or shall attain, their Normal Retirement Date and
shall be allocated pro-rata among such individuals on the basis of
the lump-sum actuarial equivalent, (determined as of the date of
termination of the plan), of their respective retirement income, (or
other Plan benefits), as'of the date of termination or partial
termination. The interest of any participant in the plan as of the
date of termination or partial termination is non-forfeitable to the
extent that such interest is funded.
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SECTION 16-63
MISCELLANEOUS
(a) Nonrestriction of the City's Employment and Business
Policies.
Nothing in this plan shall be construed as a contract of employment
nor as modifying or limiting in any way the right of the City to
terminate the employment of any Participant, to establish policy, or
otherwise to conduct its business of municipal government.
(b) Interest in Fund not Subject to Creditor's Claims.
Subject to the provisions of Paragraph (0)', below, none of the
benefits, payments, proceeds, claims or rights of any participant
hereunder shall be subject to the claims of creditors, or to
attachment or garnishment or other legal process, nor shall any
Participant have any right to allocate, anticipate, commute, pledge,
encumber or assign any of the benefits, payments or proceeds which he
may expect to receive hereunder.
(c) Predecessor Employer.
If the City by adopting this Plan is maintaining the plan of a
predecessor employer, then service for such predecessor shall be
treated as service for the City.
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(d) Intention to Continue Plan.
The City expects to continue this Plan and the payment of
Contributions hereunder indefinitely; however, the continuance
thereof is not assumed as a contractual obligation of the City, and
in the event of the termination of the plan for any reason, the
distribution of the funds in the Trust shall be made in accordance
with the applicable provisions of this Plan.
(e) Continuation of Plan by Successor Employer.
If the City shall be merged or consolidated with any municipality or
other corporation, such surviving entity may elect within thirty (30)
days thereafter to continue this Plan. In such event those
Participants who continue their employment with the successor entity
shall remain as Participants of this Plan without a Break-in-
Service. Those Participants who are not employed by the successor
municipality or other corporation or, if such successor does not
continue this plan, shall be deemed to have retired regardless of age
and shall receive the full amount in their Pension Accounts, to be
,
paid in accordance with the provisions of Section 16-60(c). In any
event, after any such merger or consolidation, a Participant shall be
entitled to receive a benefit which is at least equal in value to the
benefit he would have been entitled to receive before the merger or
consolidation if the plan had then been terminated.
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(f) Controlled or Affiliated Service Group.
If the City is a member of a controlled group of corporations (as
defined in Code Section 414(h), or a group of trades or businesses
(whether or not incorporated) under common control (as defined in
Code Section 414(c), as modified by Code Section 415(h», or an
affiliated service group (as defined in Section 414(m), then for
purposes of participation, vesting and determining Annual Additions,
all employees of all member corporations or entities shall be treated
as employed by a single employer.
(g) Rights against City.
Neither the establishment of this Plan, nor any allocation made
hereunder, nor the payment of any benefit, shall be construed as
giving a Participant or any other person a legal or equitable right
against the City, the Trustee, or any Employee thereof, except as
herein expressly provided or as required by law.
(h) Minors and Incompetents.
If the Trustee determines that any person entitled to payments
hereunder is a minor or incompetent by reason of physical or mental
disability, it may make all payments thereafter becoming due to such
person to any other person for the benefit of the minor or
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incompetent, without responsibility to follow the actual application
of amounts so paid. Payments properly made pursuant to this
direction shall completely discharge the City and the Trustee from
all liability connected therewith.
(i) Applicable Law.
The provisions of this Plan and Trust Agreement shall be construed,
administered and enforced according to the laws of the State of
Florida, except to the extent that such laws are inconsistent with or
superseded by the Code or the Act.
(j) Mistake of Fact.
In the event the City shall make a Contribution to the Trust under a
mistake of fact, the City may demand repayment of the amount so
contributed at any time within one (1) year following the time of
payment, and the Trustee shall then return such amount to the City
within said one (1) year period.
(k) Restrictions on Return of Contributions.
For the purpose of Paragraph (j)' above, the amount that may be
returned to the City shall be limited to the excess of the amount
contributed by the City to the plan over the amount that would have
been contributed had the mistake of fact not occurred.
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Trust investment earnings attributable to the Contributions returned
under Paragraph (j) above, shall not revert to the City, but any
losses attributable thereto must reduce the amount so returned.
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Notwithstanding anything to the contrary contained in Paragraph (j) ,
no amounts shall be returned to the City to the extent that such
return would cause the or the Pension Account of any Participant to
be reduced to less than the balance that existed prior to the mistake
of fact.
(1) Claims.
A Participant, former Participant, or Beneficiary may file with the
Trustee a written claim for benefits upon the occurrence of any event
which in the claimant's opinion gives rise to the payment of benefits
hereunder. In the event the Trustee shall determine that the
claimant is not entitled to the claimed benefits, the Trustee shall
so notify the claimant in writing within ninety (9Ø) days of receipt
of the claim and shall set forth the reasons for such determination,
with specific reference to the terms of this Plan upon which the
denial is based. The claimant may request that an adverse
determination be reviewed by the Trustee and shall be given the
opportunity within ninety (9Ø) days of said request to present any
additional information which may establish his right to the benefit
so claimed. The decision of the Trustee with respect to any such
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appeal shall be rendered in writing and shall be delivered or mailed
to the claimant within sixty (60) days following receipt of the
appeal. The Trustee's decisio,n shall be final and binding on all
parties.
(m) Transfer of Interest.
At the request of a Participant who has terminated employment, the
Trustee will transfer the nonforfeitable interest of such Participant
in his QVEC Account or Pension Account to another trust forming part
of a pension or profit sharing plan maintained by such Participant's
new employer and meeting the requirements of Section 401(a) of the
Internal Revenue Code (provided that the Trust to which such transfer
is made specifically permits the transfer), or to the Participant for
the "roll-over" of such distribution within sixty (60) days into an
Individual Retirement Account, as defined in Code Section 408.
Upon request of an Employee, the Trustee will accept funds
transferred from a qualified plan or "conduit" Individual Retirement
Account to the account of a participant under the Plan, provided that
the plan from which funds are transferred specifically permits the
transfer and the Trustee is satisfied that the transfer will not
jeopardize the qualified status of this Plan.
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The Trustee will accept funds from an Employee consisting of employer
contributions to a prior qualified pension or profit sharing plan or
Individual Retirement Account if paid to the Trustee by the Employee
within sixty (60) days of receipt of same from said prior plan. With
regard to any funds transferred to this plan hereunder, the Trustee
shall maintain a separate, nonforfeitable account for the amount
transferred, along with its share of the investment gains and losses
of the Trust, until such Participant's other plan interests are
completely nonforfeitable, at which time the two accounts may be
merged.
(n) Agent for Service of Process.
For all purposes under this Plan, including for the filing of claims
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pursuant to Paragraph (1) above, the Trustee shall be the agent for
service of process.
(0) Alternative Payees. All rights and benefits, including
distribution elections, provided to a participant under this Plan
shall be subject to the rights afforded to any "alternate payee"
under a "qualified domestic relations order" as those terms are
defined in Code Section 414(p).
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(p) Limitations of Benefits for Certain Employees
Notwithstanding any provision in this plan to the contrary, during
the first (10) ten years after the Effective Date hereof, the
benefits provided by the City's Contributions for Participants whose
annual benefit provided by such Contributions will exceed $1,500, but
applicable only to the twenty-five (25) highest paid employees as of
the time of establishment of the Plan (including any such highest
paid employees who are not Participants at that time but may later
become participants) shall be subject to the following conditions:
(1) Such benefits (including any withdrawal values available to
a Participant'or any death or survivor's benefits payable on
behalf of a deceased, retired Participant) which have been
provided by the City's Contributions shall be paid in full not
exceeding the largest of the fOllowing amounts:
(i) $20,0Ø0¡ or
(ii) An amount equal to 20% of the first $50,0Ø0 of the
Participant's average regular annual compensation multiplied by
the number of years since the Effective Date.
(2) If the Plan is terminated or the full current costs thereof
have not been met at any time within ten (10) years after the
Effective Date, the benefits which any of the participants
described in the first paragraph of this Paragraph (p) may
receive from the City's Contributions shall not exceed the
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benefits set forth in Subparagraph (1) above.
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3) If a Participant described in Subparagraph (l~ of this
Paragraph (p) leaves the employ of the City or withdraws from
participation in the plan when the full current costs have not
been met, the benefits which he may receive from the City's
Contributions shall not at any time within the first ten (lØ)
years after the Effective Date, exceed the benefits set forth in
subparagraph (1), above.
4) These conditions shall not restrict the full payment of any
insurance, death or survivor's benefits on behalf of a
Participant who dies while the Plan is in full effect and its
full current costs have been met.
(5) These conditions shall not restrict the current payment of
full retirement benefits called for by the Plan for any retired
participant while the Plan is in full effect and its full current
costs have been met.
(6) In the event of termination of the plan within ten (lØ)
years after the Effective Date, distributions to then unretired
Participants other than the participants described in Paragraph
(p) (1), above, shall include an equitable apportionment ,among
such Participants of any excess benefits purchased by the City's
Contributions for the participants described in
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subparagraph (1) of this Paragraph (p), in the manner following:
to each such other Participant in the ratio that the cash value
of policies on the life of,each such Participant bears to the
total cash value of all policies on the lives of all such other
Participants.
(7) This paragraph (p) is included in this Agreement in order to
comply with the requirements of Treasury Regulation Section
1.401-4(c), and shall only be effective as long as that section
(or any substitute thereto) remains effective and applicable.
(q) Interest on Late Benefit Payments. Pension payments,
although not promptly paid for any reason, and any other payments to
be made out of the Trust, although not paid promptly for any reason,
shall not bear interest unless so ordered by the Trustee, who shall
have discretion to fix the rate and calculate any such interest, and
in such event, the interest to be paid shall not exceed the then
current rate of interest being returned on the funds on deposit in
the Trust.
(r) Protection Against Fraud and Deceit, Penalties. Whosoever
with intent to deceive shall make or cause to be made any statement"
report, certificate, election, notice, claim or other instrument
authorized or required under this Plan, whether of the enumerated
employee classes or otherwise, which shall be untrue, or who shall
falsely or cause to commit to be falsified any record comprising any
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part of the operation or administration of the Plan contemplated by
this Agreement, shall be punished as provided by the City Code of the
City of Clermont, Florida. Any such violation shall also be
punishable as provided under the laws of the State of Florida.
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IN WITNESS WHEREOF, the parties have executed this Plan and
Trust Agreement this ~~ day of ~
198 c..
Signed, sealed and delivered
in the presence of:
CITY OF CLERMONT, FLORIDA
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City Manager
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ª:<l # Ei(tOIfPORATE SEAL)
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TRUSTEE:
BOARD OF TRUSTEES APPOINTED BY THE
CITY COUNCIL OF THE CITY OF
CLERMONT, FLORIDA
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As to Trustee
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